Repost - Habitat Plans Undoing Species Protection Spillway News Spring 2001 -

Spillway News Spring 2001

Habitat Plans Undoing
Species Protection
By Roanne Withers

“California has exceeded its carrying capacity,” stated
California Resources Secretary Mary Nichols, keynote
speaker at the annual UC Davis Endangered Species Act
(ESA) and Water Resources Issues Conference in Sacramento
last September.1 Her statement represents official
admission that California’s population exceeds the resource
base here supporting it.

Nichols further lamented that she “had no useful answers”
to “lots of questions” about how to reconcile providing
water to the state’s growing human economy and
population and protecting endangered species dependant on
that same water for survival — except to “spend money.”

Nichols was referring to the costly and contentious
marriage of economic development and species protection in
federal Habitat Conservation Plans (HCPs). HCPs in
California also result from a 1991 state law called the
Natural Communities Conservation Planning Act, creating
the state’s HCP counterpart, Natural Community Conservation
Plans (or NCCPs).2

Major regional HCPs and multi-species conservation
strategies have been adopted or planned by CalFED Bay-
Delta Program agencies relating to water supply reliability
and ecosystem restoration throughout the Central Valley, as
well as for key frog, snake, plant, bird and other species
throughout California.3

As developers (and corporate owners of vast tracts of
timber land) increased criticism of the ESA and its application
to private land, the Clinton Administration adopted
policies, such as a “no surprises” rule, to increase use of
HCPs. Neither the US Fish and Wildlife Service (USFWS)
nor the National Marine Fisheries Service (NMFS) — let
alone California’s resource protection agencies — are
allocated enough staff and funding by legislators to assess
species for their biological status and enforce the ESA on
every individual development (or timber harvest plan)
despite ESA mandates that assessment and enforcement
occur.

Instead, private landowners hire consultants to provide
biological assessments for HCPs. The burden of proof of a
species’ status relative to ESA is borne by conservationists.
To challenge the adequacy of a biological assessment, and in
turn argue an HCP does not protect endangered species,
conservationists must sue in court to correct the matter.4

What Is a Habitat Conservation Plan?

Section 9 of the federal ESA prohibits “take” of federally
listed animals without appropriate authorization. Take is
defined under the ESA, in part, as “killing, harming, or
harassment” of a federally listed species. “Harm” in the
definition of “take” means an act which actually kills or
injures wildlife, and may include habitat degradation or
changes that actually kill or injure wildlife by impairing such
essential behavior patterns including breeding, spawning,
rearing, migrating, feeding, or sheltering.

In 1983, Congress adopted Section 10 of the ESA which
allows for some “taking” of endangered species. “Incidental
take” involves a take that is incidental to, and not the
purpose of, otherwise lawful activities.

In 1988, Congress further defined Section 10 by passing
amendments to provide a means for non-Federal projects
resulting in take (and harm) of listed animals to be permitted
subject to carefully prescribed conditions. These amendments
try to balance economic development with endangered
species conservation. They encourage public-private
partnerships through HCPs (and other similar plans) to
accomplish these goals.5

“The principle underlying the Section 10 exemption,”
says the National Audubon Society, “is that some individuals
of a species or portions of their habitat may be expendable
over the short term, as long as enough protection is provided
to ensure the long term recovery of the species.”6

Many conservationists are convinced that HCPs are used
to avoid, undermine, and sabotage state and federal environmental
protection laws. In San Diego, for example, a widelyused
HCP process, called the Multiple Species Conservation
Program (MSCP) was only half-baked before approved.
Mark Massara of Sierra Club’s Coastal Campaign states,
“Despite virtually no funding and no monitoring or evaluation
of habitat set-asides, development is moving forward
[under the San Diego MSCP]. Open space habitat to be
‘established’ is often existing public parks, or even street
medians. Vernal pools and wetlands have already been
destroyed.”7

The Politics of HCPs

Monitoring and evaluation of HCPs is not readily smiled
upon by the powers that be.

The California Coastal Commission (CCC) became
concerned last October that US Fish and Wildlife Service approved
HCPs circumvent the Commission’s environmental
protection authority. Some 80 HCPs now exist in California,
and many include coverage of large stretches of California
coastline.8 Apparently, the CCC had not been consulted on
the growing use of HCPs by USFWS and the California Department of Fish and Game (DFG), which is surprising since state and federal coordination of coastal protection
policies has long been a hallmark of coastal zone management.9

Despite CCC’s normal procedures for reviewing federal
actions for consistency with coastal land use plans, Governor
Gray Davis relieved a commissioner of her seat before she
could cast a vote to sustain a request for Commission review
of federal HCPs before the U.S. Department of Commerce
(NMFS’s parent agency).

Ten other states, reports the Los Angeles Times, had such
requests routinely approved by Commerce. But with developers,
landowners, and government officials, complaining
that CCC review would have a “chilling” effect on development
activity in the coastal zone, Governor Davis did not
wish to alienate an important and well-heeled constituency,
especially in the midst of the state’s energy crisis. The CCC
voted 6-5 to withdraw the request to Commerce in January
2001.10

In addition, the North Coast Regional Water Quality
Control Board (NCRWQCB) also became concerned
regarding the water quality implications of the HCP for the
Headwaters Forest settlement.11

HCPs Mean “No Surprises”

Lynn Cox, a lawyer for the US Interior Department stated
at the ESA and Water Conference last September that
USFWS, despite sparse case law on indirect effects — such
as growth inducement caused by expansion of a water
district’s services — would require a water district to consult
with USFWS and/or NMFS for an opinion about possible
harm to endangered species as a result of the water service
expansion, even though water districts have no authority to
regulate growth.

Cox stated that in the absence of an HCP, USFWS would
issue a “jeopardy opinion” (which would halt the water
service expansion) as a matter of policy. Dawn Andrews-
McIntosh, attorney for NMFS, said that NMFS concurs with
this policy.

These consultation policies led Interior Secretary Bruce
Babbitt to make HCPs more attractive to developers and the
water industry in 1994 by issuing a “no surprises” rule,
guaranteeing that the federal government will not change
conditions of HCPs for a specific time period, even should
the situation become more dire for a species. Most clauses
last about 30 years, although some cover 100 years and
others just a few.12

With an HCP in place, then, the water district could
expand service, even if it meant incidental taking of an
endangered species individual, and could continue doing so
for the term of the HCP agreement.

The Surprise in “No Surprises”

Spirit of the Sage Council, a southern California based
environmental coalition, filed suit in federal court in the
summer of 1998, hoping to invalidate the vast majority of
HCPs with a legal challenge of “no surprises” rules. The suit
contends that “no surprises” rules violate the Endangered
Species Act, and that Babbitt overstepped his authority in
authorizing them.13

In effect, Eric R. Glitzenstein of the Spirit of the Sage
Council told Congress in 1999, the HCP requirement of the
ESA “has been converted from one intended to facilitate the
recovery of species into one under which the wholesale
‘taking’ of endangered species is authorized in exchange for
woefully inadequate ‘mitigation’ — not ‘conservation’ —
plans which do little, if anything, to offset the extensive
damage to the affected animals and plants.”14

In 1999, a major scientific analysis of HCPs released by
the American Institute of Biological Sciences and the
National Center for Ecological Analysis and Synthesis
confirms conservationists’ long-held concerns about HCPs.15

A group of 119 independent scientists examining 43
HCPs in detail and 208 more generally, concluded that
critical scientific information about endangered species is
often not available for the HCP approval process. They
specifically cite a major lack of biological monitoring to
determine specific effects of the HCP on the species concerned
and an over-reliance upon unproven management
techniques.

USFWS and NMFS acknowledged these findings, but
added, “the HCPs currently in place are based on the best
available scientific and commercial information. If we lack
critical information regarding the biological needs of a
continued on page 14

Many conservationists are convinced
that HCPs are used to avoid,
undermine, and sabotage state and
federal environmental protection laws.
species proposed to be covered under an HCP, we will not
issue the permit until such information is obtained or an
acceptable adaptive management strategy is incorporated
into the HCP to address the uncertainty.”16

In June 2000, USFWS and NMFS clarified policy
guidance used by biological consultants and developers for
the incidental take permit program and for those applying for
incidental take permits under section 10(a)(1)(B) of the
ESA.17 Five areas of policy guidance in the addendum are:
establishment of biological goals and objectives, adaptive
management, monitoring, public participation and duration
of incidental-take permits granted as part of the HCP
process.18

“HCPs were designed by Congress to authorize incidental
take [of endangered species], not to be mandatory
recovery tools,” according to the Handbook. Nor are HCPs
required to contribute to recovery of a species or to even
have a net benefit to affected species. All that is required is
that the issuance of a section 10 incidental take permit based
on the HCP must not “appreciably reduce” the likelihood of the survival and recovery of the species in the wild.19

In this world of non-protective protection, “adaptive
management” addresses the situation where inadequate
information exists about the ecology of endangered species
or their habitats. USFWS claims HCPs have been and will be
“carefully crafted so that unforseen circumstances will be
rare.”

However, under the “no surprises” rule, the actual extent
of adaptive management provisions in the HCP are negotiated
between the Services and the developer and can be
politically restricted. “Unforseen circumstances” that arise
after the HCP has been approved are to be addressed by land
acquisition, and habitat restoration or enhancement the
expenses of which are to be paid for by state and federal
taxpayers.20

Heavy Hands-On

After two years in office, it is increasingly apparent that
California Governor Gray Davis intends to use his office to
override science and ecological ethics on behalf of developers examples
of natural resources suffering as a result of
excessive political compromise, as well as many instances in
which biologists are being told by the Governor’s staff to
‘back off’ in their efforts to protect fish and wildlife.’”21

ESA: A Failed Law?

American Lands and the Endangered Species Coalition
point out that USFWS is failing to identify and “list”
imperiled species as Threatened or Endangered, denying
these species the benefits of the ESA.

At least 6,480 plant and animal species in the US are at
risk of extinction, yet only 18 percent are officially listed as
Threatened or Endangered under the ESA. Of those species
being listed, most required lawsuits to force the Administration
to act. At least 189 species needed lawsuits, and some
required as many as 5 suits. More than 300 species are
considered “candidates” or are proposed for listing. But
unless a court orders it or the species faces a dire emergency,
no new species will receive federal protection any time
soon.22

On November 23, 2000, USFWS halted all work on
listing new species for the rest of the fiscal year (ending
September 2001) in order to complete court-ordered work on
designating critical habitat for some 30 species. Additionally,
USFWS successfully lobbied Congress for a reduction in its
budget.23

According to a Congressional Research Service Issue
Brief to the new 107th Congress, the ESA “could be considered
a failure, since only 11 species have been delisted due to
recovery, as of November 16, 2000. Seven species were
determined to be extinct since their listing, and twelve have
been de-listed due to improved data.”

The issue brief further states, however, that “a number of
listed species (41 percent of listed species according to one
study) have stabilized or increased their populations, even if
the species is not actually de-listed. Still other species (e.g.,
red wolves and California condors) might not exist at all
without ESA protection, even though the species are still
rare.”24

Tim Stroshane provided research assistance.

NOTES
1. In basic ecology, textbooks define carrying capacity as
“number of individuals in a population that the resource of a
habitat can support”; Encyclopedia Britannica defines
carrying capacity as “the maximum number of animals of one
or more species that can be supported by a particular habitat
or area through the most unfavorable period of the year. The
carrying capacity is different for each species in a habitat
because of that species’ particular food, shelter, and social
requirements and because of competition from other species
that may have similar requirements.”

2. Approved NCCPs provide the basis for issuance of state
authorizations for takes of listed species and may provide the
basis for issuance of federal take permits. However, the
NCCP process does not supplant the listing process of either
the federal or state endangered species acts. The Natural
Communities Conservation Planning Act gives the California Department of Fish and Game discretion on use of NCCPs in
California Fish and Game Code Section 2810: “The department
may enter into agreements with any person for the
purpose of preparing and implementing a natural community
conservation plan to provide comprehensive management
and conservation of multiple wildlife species, including, but
not limited to, those species listed” in the state’s endangered
species act. “The primary objective of the NCCP program is
to conserve natural communities at the ecosystem scale
while accommodating compatible land use. The program
seeks to anticipate and prevent the controversies and
gridlock caused by species’ listings by focusing on the longterm
stability of wildlife and plant communities and including
key interests in the process.” Fish and Game Code Section
2800-2840. For complete review of statutes and guidelines of
the Natural Communities Conservation Program see
ceres.ca.gov/env_law/state.html.

3. See CalFED Bay-Delta Program, Multi-Species Conservation
Strategy, Technical Appendix to the Final Environmental
Impact Statement/Report, July 2000; on the HCP for the redlegged
frog, see Annette Kondo, "U.S. Proposes to Designate
Habitat for Imperiled Frog," Los Angeles Times 9 September
2000, and Peter Felsenfeld, "Red-legged frog may slow
Dublin’s growth: The U.S. Fish and Wildlife Service will likely
designate the entire city as critical habitat," Contra Costa
Times 27 October 2000; and on the HCP for the Alameda
whipsnake, see Associated Press, "400,000 acres of California
habitat declared critical for snake," San Diego Union-
Tribune 3 October 2000.

4. See “Habitat Conservation Plans: Not All They’re Cracked
up to Be,” by Tara Mueller, Attorney-at-law, www.igc.org/epic/
pages/hcp_facts.html, and “EPIC’s Summary and Critique of
the Pacific Lumber Habitat Conservation Plan.” at
www.igc.org/epic/pages/pl_hcp.html.

5. The final rule (64 FR 32706, June 17, 1999) modified the
no surprises policy so that the permitted taking will not
appreciably reduce the likelihood of the survival and recovery
of the species. If continuation of permitted activities would be
inconsistent with the finding, and the inconsistency is not
remedied in a timely fashion, the new regulations provide for
revocation of incidental take permits, even if they contain no
surprises agreements.

6. National Audubon Society, “A Citizen’s Guide to Habitat
Conservation Plans,” at www.audubon.org/campaign/esa/
hcp-guide.html.

7. See also Susan Davis, “Plastic Greens,” Anderson Valley
Advertiser 26 July 2000.

8. Deborah Schoch, “Coastal Panel Seeks Wider Role in
Plans to Conserve Habitat,” Los Angeles Times 12 October
2000.

9. In particular, California Public Resources Code section
30330 and 30400 mandate review of federal actions authorizing
activities in the coastal zone by the CCC for consistency
with the Commission’s federally approved Coastal Zone
Management Plan.

10. Seema Mehta, “Coast panel drops bid for role in habitat
plans,” Los Angeles Times 11 January 2001. Mehta notes that
had the yanked commissioner Kitch Eitzen of Humboldt
County “was not sufficiently interviewed in advance,” according
to Mary Nichols who said Eitzen was not appointed
properly. Mehta reports, “Had Eitzen voted against withdrawal,
as expected, there would have been a tie, meaning
the request would have stood.”

11. See the North Coast Regional Water Quality Pacific
Lumber Company Staff Report, September 9, 2000 at
www.swrcb.ca.gov/rwqcb1/palco.html, and the November 9,
2000 Coastal Commission Staff Report for the California
Coastal Management Workshop on Nov. 15, 2000, at
www.coastal.ca.gov/fedcd/ccmpworkshop.pdf

12. The Services codified the “No Surprises” policy into a final
rule, on February 23, 1998 (63 FR 8859). No Surprises Rule,
Federal Register: February 23, 1998, Volume 63, Number 35,
Rules and Regulations, Page 8859-8873 from the Federal
Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23fe98-12] at www.epa.gov/fedrgstr/EPA-SPECIES/
1998/February/Day-23/e4367.htm.

13. Spirit of the Sage Council is an all volunteer grassroots
non-profit 501 ( c )3 tax-exempt project and coalition of
American Indians, environmental organizations, citizens
action groups, scientists, legal experts and wildlife advocates
dedicated to the protection and conservation of America’s
natural and cultural resources. See www.sagecouncil.com/
index.html.

14. No Surprises Testimony of Eric R. Glitzenstein Before the
Senate Subcommittee on Fisheries, Wildlife, and Drinking
Water of the Senate Committee on Environment And Public
Works at www.sagecouncil.com/noSurTestimony.html

15. To access the full "Using Science in Habitat Conservation
Plans" report see www.nceas.ucsb.edu/ for Kareiva, Peter,
Habitat Conservation Plan Data, 1999.

16. Federal Register: June 1, 2000 (Volume 65, Number
106)] [Notices] [Page 35241-35257] From the Federal
Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jn00- 166] www.eswr.com/f610g.txt.

17. The joint U.S. Fish and Wildlife Service and National
Marine Fisheries Service Habitat Conservation Plan Handbook
is available on endangered.fws.gov/hcp/hcpbook.htm
and is called "Handbook for Habitat Conservation Planning
and Incidental Take Permitting Process."

18. The five-point Addendum to the Handbook is available at
endangered.fws.gov/hcp/addendum.html. The Addendum
Federal Register took effect July 3, 2000.

19. “Habitat Conservation Planning Handbook,” pg 3-20, at
endangered.fws.gov/hcp/index.html#Handbook.

20. “No Surprises Myths” at endangered.fws.gov/hcp/
nsmyths.pdf

21. “California’s Failed Forest Policy: State Biologists Speak
Out,” California Public Employees for Environmental Responsibility,
Summer 2000.

22. “Broken Promises of Recovery: The Clinton
Administration’s 10-Prong Attack on Endangered Species,”
American Lands In Cooperation With the Endangered
Species Coalition, January 17, 2000 www.stopextinction.org/

23. Congressional Research Service Issue Brief for Congress,
IB10072: Endangered Species: Continuing Controversy,
M. Lynne Corn, Resources, Science, and Industry
Division, February 8, 2001 www.cnie.org/nle/biodv-1.html.

24. Ibid.